Recent Court Decisions

Stacy Tempel-St. John:

Malcomson v Liberty Northwest; 2013 MTWCC21; affirmed at 2014 MT 242, 376 Mont. 306. Malcomson withdrew her consent allowing Respondent Liberty Northwest to have ex parte (private) communications with her medical providers.  She then signed a release allowing Respondent to obtain relevant medical information, but requiring Respondent to give her the opportunity to participate in any communications.  Respondent terminated Malcomson’s benefits, arguing that it is entitled to pursue ex parte (private) communications with an injured worker’s medical providers pursuant to §§ 39-71-604(3) and 50-16-527(5), MCA.  Malcomson petitioned the Workers’ Compensation Court, arguing that these statutes unconstitutionally violate her right of privacy under Article II, Section 10, of the Montana Constitution, and her right to due process under Article II, Section 17, of the Montana Constitution and under the Fifth and Fourteenth Amendments to the United States Constitution. The court held as applied to the facts of this case, § 39-71-604(3), MCA (2007), unconstitutionally violates Malcomson’s right of privacy under Article II, Section 10 of the Montana Constitution.  Malcomson is entitled to reinstatement of her medical benefits, which Respondent terminated after she refused to allow Respondent to communicate ex parte (private) with her healthcare providers.

J. Kim Schulke:

Dostal, Ginger v. Uninsured Employers Fund, 2012 MTWCC 5 (Findings of Fact, Conclusions
of Law and Judgment).
Summary: Respondent ceased paying Petitioner TTD benefits when it came to believe she had returned to work, and additionally because her treating physician had placed her at MMI and approved job analyses. Respondent refused to pay Petitioner her impairment award because it alleged it had overpaid TTD benefits. Petitioner alleges that she is entitled to ongoing TTD benefits and her impairment award and that Respondent has unreasonably withheld these payments, thus entitling her to attorney fees and a penalty award.
Held: Petitioner does not receive wages in any form for the occasional labor she performs for her ex-husband’s lawn care business. Therefore, she has not returned to work. The job analyses approved by Petitioner’s treating physician are not for jobs in Petitioner’s labor market and therefore Respondent did not comply with the Coles criteria prior to terminating Petitioner’s TTD benefits. Respondent has not overpaid Petitioner’s TTD benefits. Petitioner is entitled to reinstatement of her TTD benefits and payment of her impairment award. Respondent unreasonably withheld these payments. The Court will hear oral argument on the issue of whether Respondent can be ordered to pay Petitioner’s attorney fees and a penalty.

Norman L. Newhall

Davidson, April v Benefis, 2014 MTWCC 18
Summary: Petitioner argued her preexisting lower extremity impairment combined with her industrial injury resulted in an actual wage loss, entitling her to PPD benefits. Respondent countered that Petitioner resigned her CNA position, and that her preexisting permanent impairment was unrelated to her industrial accident, giving her no right to PPD benefits.
Held: Section 39-71-703(1), MCA (2009), did not require that a permanent impairment be a direct result of the industrial injury. Petitioner was forced to resign because she could not return to her time-of-injury job due to a combination of her preexisting permanent impairment and her industrial injury. Therefore, Petitioner had an actual wage loss under the pre-2011 PPD statutes, entitling her to PPD benefits and an impairment award.
Thompson, Connie v Montana State Fund, 2013 MTWCC 25
Summary: Petitioner alleges she is permanently and totally disabled as a result of an occupational disease affecting her right wrist, cervical spine, and right vocal cord that impairs her ability to speak audibly. Respondent counters that Petitioner has jobs approved for her by her treating physician and is therefore employable and not totally disabled.
Held: Petitioner’s job approvals were inconsistent with her physical limitations and vocal impairment which renders her unable to speak above a whisper. Given the totality of Petitioner’s condition, she does not have a reasonable prospect of employment, and is therefore permanently and totally disabled.
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